Between Court and Church: Opportunities Lost and Found

Since the announcement of the Supreme Court ruling on Obergefell v. Hodges, I’ve been reading a lot of commentary and doing a lot more thinking. There’s plenty of noise on this topic already and you’re likely already burned out by it all, but I feel the need to commit my thoughts to writing and, just maybe, the perspectives I offer here could be of help to some who come across them.

In brief, my overall outlook is that, while some legal and political opportunities were lost in the SCOTUS decision, there are valuable opportunities for the dedicated and discerning Catholic to be found in the result.

Opportunity Lost: Church and State

During the whole history of this debate, from long before my conversion, my position has been the same:

As a question of civil law
I have been opposed to instituting “homosexual marriage”
I have also and equally opposed
all legislation regarding “heterosexual marriage.”

Yes, I realize that might sound rather strange at first but hear me out.

As Catholics, we affirm that marriage is a sacrament of the Church and, as such, belongs to the divine deposit. The very notion that secular civil authorities might exercise independent power over sacred rites would be blasphemous if it were not patently ridiculous. As Citizens of the United States, we conform to governing principles that support the free exercise of religion [ and as Catholics we should give thanks for that since, were it otherwise, the radical Protestants who founded this nation would surely have run us out ] and restrict Congressional powers with regard to religion. In addition, the tradition of the United States [ and as Catholics let us be consistent in valuing Tradition as well as Text ] has developed those principles into a general rule that maintains a separation of Church and State.

As Catholic Americans, then, we should have every reason to understand and even endorse a clear difference between the sacrament of marriage and the contract of civil union on the other. In fact, to a certain degree, we already do. No one would expect that, without filing for a “marriage license” from the state, the Church would have the civil authority to grant you the eligibility to file joint tax returns; neither do we believe, in Catholic terms, that a “marriage license” and a “civil ceremony” is enough to establish a validly sacramental marriage among Catholics. Why the big to do?

The reason for all the shouting about any “redefinition of marriage” is really a problem of our having conflated two different functions and powers. The simple and, I would argue, most Constitutionally consistent solution would have been to officially separate them.

Under this outlook, any two legally consenting and legislatively eligible individuals would be allowed to enter into a state-licensed contract of civil union. At the same time, “marriage” would be reserved and returned to religious institutions, whose own rules and laws would define and determine the validity of marriages among their congregants. Sure, priests and pastors and ‘internet-ordained ministers’ would have to give up “the power vested in me by the state of ___” but, seriously, should they have ever had it in the first place? Still more confusing is how close the Court came to seeing this conclusion and yet, for some reason, seemed to have completely missed the possibility of reaching it.

From Justice Kennedy’s majority opinion [emphasis added]:

“Finally, it must be emphasized that religions, and those
who adhere to religious doctrines, may continue to advocate
with utmost, sincere conviction that, by divine precepts,
same-sex marriage should not be condoned. The
First Amendment ensures that religious organizations and
persons are given proper protection...
...The Constitution, however, does not permit
the State to bar same-sex couples from marriage on the
same terms as accorded to couples of the opposite sex.”

The Court had a unique opportunity to support the First Amendment, effect the same legal outcome they (apparently) wanted to establish, and set a strong precedent for collisions of church and state interests in the future. That opportunity was lost.

Opportunity Found: Precision in Language and Law

Just because the Court failed to recognize the potential for an adjustment in language, there’s no reason Catholics can’t become more precise in our own discussions. In fact, as anyone who has any familiarity with the annulment process can tell you, it would be of great benefit to the Church—religious and laity alike—if we all knew enough to be perfectly clear on these points. And we don’t need to be canon lawyers to make the adjustment; the terms are fairly straight-forward: civil union [as contracted by the state], natural marriage [which may (and, by Church law, is usually presumed to) arise between non-Catholics united by the state or non-Catholic religious institution], and sacramental matrimony [as approved, defined, and validated for Catholics by the supreme authority of the Church]. As is already the case, though many seem unaware of it, the Church is and has been only genuinely concerned with the latter two. And, if you think about it for a second, that should make it perfectly clear why divorce, which is the dissolution of a civil contract has no effect on the Church’s view of an individual’s marital status and eligibility.

So, for a start, consider the Obergefell ruling an opportunity to learn a little more about our Tradition’s understanding of marriage and to begin speaking a little more precisely in your day-to-day dealings.

Opportunity Lost: Supporting the Institution

Regardless of the ruling itself, the Court had many, many, many [seriously, the text seems to go on forever] very lovely things to say about marriage, even reaching into the annals of world history to note its central place in the development and sustenance of all civilization. The Court even suggests that it is precisely the remarkable, incomparable social, personal, and spiritual value of this institution that makes it so vital to those pursuing it.

From Justice Kennedy’s majority opinion [emphasis added]:

“ is the enduring importance of marriage that
underlies the petitioners’ contentions. This, they say, is
their whole point. Far from seeking to devalue marriage,
the petitioners seek it for themselves because of their
respect—and need—for its privileges and responsibilities.
And their immutable nature dictates that same-sex marriage
is their only real path to this profound commitment...”

Pretty serious stuff. You might think that, while recognizing the unique status and importance of marriage, the Court might also have noticed—and been inclined to be greatly concerned by—its marked decay over the last century. Increasing rates of divorce and unwed pregnancies would seem to suggest that, if the Court’s estimation of marriage is accurate, our culture is in grave need of repair. Now, although the Court cannot directly write new legislation, its position and power are such that it can raise public debate and bring great pressure to bear on the Legislative branch. If it is, as it purports to be, interested in the strength of the institution of marriage, a few paragraphs on solemnity, responsibility, and the need to protect marriage by toughening divorce law would have added weight and gravity to even the civil contract. Alas, though of course, the Court did no such thing.

The Court had an opportunity to press its power into the service of an invaluable, profound, and historic institution. That opportunity was lost.

Opportunity Found: Strengthening Our Commitment

We ought not let the Court’s failure to reinforce and revitalize the institution of marriage stop us from taking up the cause. If anything, this ruling gives us even more reason for a renewal of our commitment to evangelization by example. Although we should not rush too cheerfully into this task. There is a hard truth we must face and confess before we can bring light to the nation—if not all as individuals, then undeniably as members of this community—and it is a truth that explains as well as any other why the tide of public opinion turned as it did:

We have a hard time holding the moral high ground when we don’t stand on it ourselves.

Yeah, come on, you know what I’m talking about. Let’s be honest: We’ve let our concupiscence run roughshod over our adherence to Church teachings on marriage… and divorce, and sexual relations, and gender roles, and birth control, and child rearing, and (despite vociferous movements to the contrary) abortion, and even respect for legitimate authority—whether civil or ecclesiastical. How could we ever have expected not to lose this argument if we obstinately refuse to live by the tenets for which we argue?

We have before us now a fresh and pronounced opportunity (to say nothing of our basic obligation) to show the world again that a devout life is both livable and rewarding. As our culture drifts unwittingly into darkness and chaos, let us become beacons of light by truly living by the Word instead of just vainly speaking it.

Opportunity Lost: State Sovereignty and Federalism

Finally, the Court had before it two distinct questions and might have answered them separately.

Again, from Justice Kennedy’s majority opinion [emphasis added]:

“This Court granted review, limited to two questions.
The first, presented by the cases from Michigan and Kentucky,
is whether the Fourteenth Amendment requires a
State to license a marriage between two people of the
same sex. The second, presented by the cases from Ohio, 
Tennessee, and, again, Kentucky, is whether the Fourteenth
Amendment requires a State to recognize a same-sex
marriage licensed and performed in a State which does
grant that right.”

I am certainly no Constitutional scholar though, I have to say, I think the second question could have been dealt with under Article IV, Section 1 which states quite plainly, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” That seems to me a fairly straight (no pun intended) basis upon which to grant the fundamental issue of the second question—as opposed to contorting the question of Substantive Due Process—but, I don’t know, go ask a ConLaw professor. Whatever the case, especially given the rather free hand with which the Court has dealt with the legal issues in its current ruling, it seems there would have been no real barrier to granting the second question without insisting upon the first. It wouldn’t have been particularly popular on either side of the political aisle and may, like Milliken v. Bradley, have sown more confusion than anything else. Nevertheless, such a step could have advanced federal unity while exercising restraint with regard to the internal social and legal views of individual states.

As Justice Roberts suggests in his dissenting opinion [emphasis added]:

“Supporters of same-sex
marriage have achieved considerable success persuading
their fellow citizens—through the democratic process—to
adopt their view. That ends today. Five lawyers have
closed the debate and enacted their own vision of marriage
as a matter of constitutional law. Stealing this issue from
the people will for many cast a cloud over same-sex marriage,
making a dramatic social change that much more
difficult to accept.”

That debate, which was brought to a close, was reaching a peak with regard to our behaviors in the marketplace. Who must offer what services to whom and where are the boundaries between the public market and private conviction? While the arguments were heated, I believe that the majorities on either side of the opposition were not yet fully entrenched in their positions. This ruling, however, will almost certainly cause many to begin closing ranks and, I fear, things might get ugly. I don’t think it had to be the case.

The Court had an opportunity to reaffirm a balance between state and federal powers, bringing to sharp focus and public debate some of the tensions between commerce and conscience that drive deep divisions in our country today. That opportunity was lost.

Opportunity Found: The Common Good

Catholics have a duty of obedience to honor political authority in pursuit of the common good and with due respect for the dignity of all human persons. Though we fulfill our social, economic, and legal obligations, we can yet refuse to be moved from our Faith in so doing.

We have been given the opportunity to display the love and openness of our hearts and, at the same time, give evidence that our convictions do not sway with the winds of popular opinion. In this we can make it abundantly clear to all, that no one can fairly say the Catholic Church drives hate against any person.

Whatever your business, sell your goods equally to all customers—that is the legitimate law of our land. If you cannot make that offer without violating your conscience, then consider the possibility that God is calling you to new work in the world. It will not be easy, it may require giving up much to which you’ve grown accustomed, but we’ve never been given reason to expect anything but hard work and sacrifice in the pursuit of our Catholic faith.

Meditate on the sorrowful mysteries before lamenting the choices before you; realize how much more was sacrificed for your salvation than you are being asked to offer now.

Opportunities Lost and Found: Lessons Towards Living in Truth

It is not a defeat we have been dealt, it is a much needed reproach and a new opportunity to improve ourselves and to spread the Word. Let us praise God, thank Him for this hard lesson, ask His forgiveness for having required it (again), and rejoice that Spirit works in us with such strength that we can bear the weight of these challenges.

My Brothers and Sisters in Christ,
do not mourn what has not truly passed away;
do not lament the lost,
for they shall be found,
by God’s grace, returned and renewed.

Trust in the Lord.
Offer His peace to your neighbors.
Honor the gift of His forgiveness
by continuing to extend it
to all those who know not what they do.
Show the certainty of your Faith
by sharing your love for the world with the world.

If we seek enemies, we will find them
but looking for the devil
requires looking away from God.
Do not be tempted by fear.
Be not afraid, the Lord is with you.
If God is for us, who can be against us?


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